Monday, 7 October 2013

Cassation I: How We Got Here

France's
top court will next week rule whether the appeal court's fraud
convictions against Scientology should stand. Here is how we got
here.

France's top
court will hand down its ruling on Scientology's appeals against
convictions for organised fraud later this month, having heard theirlawyers accuse the appeal court of having refused them a fair
hearing.

The
movement's lawyers said that the defendants and their legal team had
walked out of their 2011 trial on appeal because, once the court had
dismissed every legal objection they had lodged, their position had
become untenable.

They
described the convictions and their treatment in court as an attack
on religious freedom, and accused the state of having put pressure on
the court just before the trial opened.

France's top
court, the Cour de Cassation, heard arguments on September 4 in a
hearing that lasted two and three quarter hours. It will deliver itsruling on October 16.

This court
is concerned not so much with the facts of the case as the question
of whether the relevant law has been correctly applied. But theirdecision, at least so far as France is concerned, is definitive.

If the court
confirms the Court of Appeal convictions, then the only recourse left
to Scientology will be to try to get the case heard at the European
Court of Human Rights.

If the court
quashes some or all of the convictions, the case will most likely go
back to the lower courts for trial.1

During last
month's court hearing, Scientology's three-strong legal team went
over some of the arguments rejected last year by the appeal court:
but they also came up with fresh lines of attack.

One in
particular related to their dramatic exit half-way through the appeal
court trial.

On
November 17, 2011, the defendants and their lawyers walked
out of the proceedingsafter six days of procedural arguments, arguing that they were not
getting a fair hearing.2

Last month
in the Cour de Cassation, the defence argued that the appeal
court, instead of going on with the trial without them, should have
halted proceedings until court-appointed lawyers could be found for
the defendants.

This idea
was dismissed by Claire Waquet, the lawyer for the counter-cult group
UNADFI. The defence line was a bit ingenuous, given that it was the
defendants themselves who had chosen to quit the courtroom, she
argued.

But before
looking at the arguments in detail, it is worth reviewing how the
case ended up at the Court of Cassation.

The
original convictions

Rewind to
October 2009.

After a
trial spread over four weeks in May and June, a Paris court convicted
two Scientology organisations of organised fraud. Six Scientology
staffers were also convicted on charges ranging from fraud to the
illegal practice of pharmacy.

Senior
Scientologists had been convicted in the past of fraud-related
charges in France: notably at the 1996 trial in Lyon; and in 1999
after the Marseille trial.3
But Scientology could at least try to characterise these convictions
as the excesses of individuals rather than something innate to
Scientology.

This time
however, the organisation itself had been put in the dock and found
guilty.

The
Association Spirituelle de l’Eglise de Scientologie CC
(ASES), or the Celebrity Centre, was convicted of organised fraud and
fined 400,000 euros.

Scientology’s network of bookshops
Scientologie Espace Librairie (SEL)
was also convicted of organised fraud. It was fined 200,000 euros.

The
fraud-related charges focused on Scientology's Personality Test,
which the original court ruling said was “devoid of any scientific
value and analysed with the sole aim of selling various products and
services.”

The court
also focussed on the hard-sell techniques used on members to get evergreater sums of money. And todrive the point home, they quoted from the writings of Scientology's
founder, L. Ron Hubbard.

Noting
that the Celebrity Centre’s turnover for 1999 was 17 million francs
(nearly 2.6 million euros), the judgment quoted a passage from a
now-notorious 1972 policy letter by Hubbard.

A.
MAKE MONEY…J. MAKE MONEY.K. MAKE MORE MONEY.L. MAKE
OTHER PEOPLE PRODUCE SO AS TO MAKE MONEY.4

It
also quoted a 1961 policy letter, “Registration”, listing 43
points advising staff members on how to handle newcomers:

Be
willing at all times to control the new body that’s come into the
shop…5

In
court and in the judgment itself, President of the Tribunal
Sophie-Hélène Château dismissed as “beyond fanciful” (plus quefantaisiste) attempts by the defendants to translate the
English phrase “hard sell” as “taking care of people”.

The
ruling took care to acknowledge the freedom of people to believe what
they wanted in the religious domain. But there were limits, it added.

Thus
individuals who use a philosophical or religious doctrine, which is
itself lawful, to deliberately deceive other people for financial or
commercial ends, are liable to be prosecuted for the crime of fraud.6

The
convictions over the illegal practice of pharmacy were over the
administration of the controversial Purification Rundown progamme, a
core element of the Narconon programme.

The Rundown
is a process devised by Hubbard combining high doses of vitamins and
minerals, aerobic exercise and extended sessions in a sauna,
supposedly to sweat toxins out of the body and thus aid the person’s
spiritual progress.

As we have
reported here previously, its critics say it has no scientific basis
and is potentially lethal.7

When
it came to the Purification Rundown, the original court ruling noted
a blurring of the lines between the scientific and the spiritual.

Scientology
had tried to have its cake and eat it, giving the Purification
Rundown a scientific veneer while at the same time insisting it was a
religious practice.

Expert
witnesses convinced the court that the use of the vitamins required
for the Rundown – in the large quantities required – should have
had prior clearance by the French authorities.

These
experts argued – and the court agreed – that the use of vitamins
in such large quantities made them not food supplements, as the
defendants had claimed, but medicines.8

It
was precisely because the manufacture, distribution and sale of the
vitamins used for the Rundown were normally reserved for pharmacists,
that France’s National Council of the Order of Pharmacists (CNOP)
had become a plaintiff in the case.

Four
Scientologists were convicted on charges relating to the illegal
practice of pharmacy.

Going
to appeal

The
convictions against the two Scientology groups was a stain on itsstanding that the movement could not leave unchallenged.

The two
organisations convicted and most of the individual defendants took
their case to the Court of Appeal. The court considered the case in
November 2011.

Scientology's
lawyer's had filed a series of legal challenges in a bid to get theirconvictions overturned, but in each case the appeal court rejected
their arguments.

As soon as
theappeal court dismissed the last of these nine challenges, on the
sixth day of the trial, Scientology's lawyers – accompanied by the
the defendants – quit the courtroom.

“The
lawyers of the Scientologists solemnly deplore that the most
elementary rights have not been respected,” they said in a
statement issued shortly afterwards.9

In a
separate statement, the Celebrity Centre said it was not prepared to
take part in a trial that was “absolutely unfair, and in which the
most elemental rights have been refused.”10

As soon as
the appeal court confirmed the convictions in February 2012,
Scientology's lawyers lodged appeals with the Courde Cassation,
France's final court of appeal.11

Now, 18
months later in the Courde Cassation – nearly two years
after their dramatic walk-out – a new set of lawyers for
Scientology was denouncing the Court of Appeal for having denied the
defendants their full right to legal representation.12

But this was
just one of a battery of arguments filed to the court.

The clerk of
the court took the first 50 minutes of the hearing to set out the
history of the case and the defence arguments placed before the Courde Cassation.

These are
some of the objections advanced by Scientology's legal team (many of
whichhave been dealt with in previous posts):

a
psychiatric report on one of the key witnesses had not been added to
the court file, thus placing the defence team at a disadvantage;

therehad been irregularities in the way the original investigation had
been carried out, and the defence accused the investigating
magisrate of bias;

thecase had dragged on so long that it was too late to prosecute some
of the alleged offences;

thetrial had been conducted as if Scientology was a business and not a
religion. By attacking the legitimacy of core Scientology practices
– such as the “fraudulent” use of personality tests to recruit
new members – the court had infringed on the defendants' right to
freedom of religion;

raisingthe issue of undue influence, or mind control “manipulation
mentale” during the trial was also effectively an attack on
the legitimate beliefs of Scientology, so this too constituted a
violation of the right to freedom of religion;

a
justice ministry circular on legal measures to combat criminalactivitiesby cults published in September 2011 – just before the
appeal trial opened – amounted to a bid by the executive to
interfere in the work of the judiciary. This was further evidence
that the scales had been weighted against the defendants;13

lecturesat the National Magistrates School (l'Ecole Nationale de la
Magistrature) by an academic
hostile to Scientology might also have tipped the scales of justice
against the defendants. The appeal court should have tried to find
out if any of the judges involved in the case had attended the
lectures;14

theinvestigating magistrate had received a copy of an academic thesis
hostile to Scientology, but this had not been added to the case
files as it should have been, further undermining the defendants'
ability to fight their case;15

theappeal court had read out statements by former plaintiffs in the
case who did not attend the appeal trial (having either settled with
Scientology or simply withdrawn their complaint). But this meant
that the defence had been deprived of the opportunity to
cross-examine them, another example of how the scales had been
tipped against them;

court-appointed
experts had argued – and the court had agreed – that the
vitamins and minerals used in the Purification Rundown were
medicines in their presentation and function. But
there was nothing in the packaging of the items sold by G&amp;amp;G, the
company that provided them, that suggested they could cure anything:
they were being sold as food supplements, not pharmaceutical
products;

thefact that the Personality Test had been advertised as being founded
on scientific research did not of itself establish fraud;

andat the trial on appeal, the court had deferred a decision on the
status of counter-cult group UNADFI until the end of the trial,
before refusing them the status of plaintiff in the case. (The same
thing had happened at the original trial.) By dealing with the issue
in this way however, UNADFI's lawyer, Olivier Morice, had been able
to participate in the proceedings. This gave them a presence in
court that they should never have had, given that their request for
plaintiff status was subsequently refused.

Many
of these arguments had been advanced during the appeal stage of the
trial – except of course the one relating to the walk-out from that
trial by Scientology's lawyers and the defendants themselves.

Since
inCassation, the arguments are more about the correct
application of the law rather than the facts of the case,
Scientology's lawyers were moving away from the details of the case.

They
wanted to focus on the broader legal and political context which,
they argued, would show how the dice had been loaded against them.Next: "'An Impossible Defence'"

---

1 The
CourdeCassation can quash a conviction without the right of
appeal, removing the possibility of a retrial, but that is fairly
unusual. For a detailed explanation of how the court works, see this
English-language summary at the court's website.

3 In
the Lyon trial, one of the defendants was also convicted of homicide
involontaire, or manslaughter, for having helped drive Patrice
Vic, a member of his group, to suicide with his incessant pressure
to take out a loan to buy more Scientology courses and materials.

4 “Governing
Policy”: HCO Policy Letter, 9 March 1972. The same passage
appeared in investigating magistrate Jean-Christophe Hullin’s
indictment. Maître Olivier Morice, Aude-Claire Malton’s lawyer,
also quoted the passage during his summing up. It appears on p39 of
the judgment.

5 “Registration”,
Hubbard Communications Policy Letter, May 3, 1961. This policy
letter, although written by South African Scientologist Sue Van
Niekerk, carries a glowing endorsement from Hubbard. These same
quotes also appeared in the indictment in this case. Both Morice and
the prosecution quoted from the document during the trial. It
appears on page 36 of the judgment.

The five-page circular did not
actually mention Scientology. It was addressed to prosecutors and
judges and was a review of the legal territory regarding cults –
and a reminder of the legal remedies available to the courts. In a
November 3 statement denouncing, Scientology said the document “pre-condemned the Church, without naming it” and asked for the
trial to put back to limit the damage. That request was refused and
the trial opened at the appeal court on November 3, 2011.
Scientology blamed MIVILUDES – the government's watchdog on the
cult-related activities, led by their old enemy Georges Fenech –
for the circular. (For more on Fenech see note 11 below.)

14Fora detailed treatment of this allegation, see “Scientology
Cries Foul” elsewhere at this site, but
briefly: the academic concerned, Arnaud Palisson, has told Infinite
Complacency that the investigating magistrate concerned did not
attend his lectures.

15This
is a reference to Palisson's thesis (see previous footnote). For a
detailed treatment of this allegation, see “Scientology
Cries Foul” elsewhere at this site.

19 comments:

I love the point about the academic thesis. It was actually published - and they know this very well (as you point out in the other excellent article). Several years before the verdict in the lower court. What is the problem?

Thanks a heap for the write-up for those of us who didn't make it to the courtroom. Looking forward to the final verdict to see if this will be one more definite criminal verdict for the, ehrm, criminal organisation known as the "church" of $cientology.

Thank you for the great review! I remember Hubbard's panic following his indictment in France in the 1970's. He was on board the Apollo in Lisbon; so was I. He literally ran off the ship and hid in New York for a year. Scientology continues to run, but there are few places left for it to hide, if any. I'll be in touch soon ...

As you'll see from the articles I run a little later this week, the argument appears to be roughly as follows: even if it looks as if it has been presented as science, in the context of a religion, it cannot be anything more than a act of faith and so cannot be attacked by the courts, since this would violate Scientogists' freedom of religion. Their lawyer put it rather more elegantly than that, as you'll see.

I know: put like that, it does read rather strangely, but that was as much as I got from that stage of proceedings. Have a look at my comment to "An Anon" below.to how the argument developed later. The relevant argument will be in tomorrow's article.

I have a question about the HCOB policy from the 9th of March 1972 (the MAKE MONEY one). I downloaded the leaked version of the full HCOB pack from wikileaks, and that policy has actually been removed from it. The same goes for several other policies that show the commercial nature of the church.

I would imagine that Scientology has been claiming during the trial that such policies have been canceled and no longer relevant.

Hi SOS, I'm currently reviewing my trial coverage and I see that Eric Roux, speaking for the Celebrity Centre, did try that line. See Part Two of his defence of the Celebrity Centre here: http://infinitecomplacency.blogspot.com/2009/09/celebrity-centre-ii.html .

For this line to be convincing however, they would have to show that this was no longer policy. They would have to produce the relevant Hubbard policy letter saying as much, and to the best of my knowledge there is no such document.

It is one thing for embarassing documents to disappear from revised editions of the policy letters or Hubbard's books for PR reasons; but that is not enough to rescind the policy itself, given that the founder said that his word was law -- unless he himself said otherwise in a subsequent post.

The defendants also tried to reinterpret, redefine compromising terms such as "hard sell", arguing that actually, it meant looking after people -- and as I mentions in my notes to the post cited above, that is actually what Hubbard argues in one of his posts (remember that he was very much aware of the value of redefining terms). Judge Château however, wasn't having any of that.

For more on the battle to redefine "hard sell", see the defence of the SEL bookshop, the other "corporate" defendant, here: http://infinitecomplacency.blogspot.com/2009/09/24-bookshop.html

Morice, for UNADFI, and the prosecutors, dealt with this point in the summings up: a search of the site using "hard sell" will get you to the relevant links.

Hi SOS, I'm currently reviewing my trial coverage and I see that Eric Roux, speaking for the Celebrity Centre, did try that line. See Part Two of his defence of the Celebrity Centre here: http://infinitecomplacency.blo... .

For this line to be convincing however, they would have to show that this was no longer policy. They would have to produce the relevant Hubbard policy letter saying as much, and to the best of my knowledge there is no such document.

It is one thing for embarassing documents to disappear from revised editions of the policy letters or Hubbard's books for PR reasons; but that is not enough to rescind the policy itself, given that the founder said that his word was law -- unless he himself said otherwise in a subsequent post.

The defendants also tried to reinterpret, redefine compromising terms such as "hard sell", arguing that actually, it meant looking after people -- and as I mentions in my notes to the post cited above, that is actually what Hubbard argues in one of his posts (remember that he was very much aware of the value of redefining terms). Judge Château however, wasn't having any of that.

For more on the battle to redefine "hard sell", see the defence of the SEL bookshop, the other "corporate" defendant, here: http://infinitecomplacency.blo...

Morice, for UNADFI, and the prosecutors, dealt with this point in the summings up: a search of the site using "hard sell" will get you to the relevant links.

Hi Jonny, Many thanks for your reply. I was actually looking for these policies in the wrong volumes which is also why I couldn't find them (I tend to mix up the Red and Green volumes). Unfortunately, I can't find a full set of HCOPL's online (only dead links).

I see what you mean about the dead links. I don't think there can be any doubt that the document exists however, considering the testimony of former members who saw it. Bear in mind too that this is the not the first court case in which it has been cited. It pops up in the famous Justice Latey B & G (Minors) (Custody) case here: http://www.xenu.net/archive/audit/latey.html#11 . It also features in the IRS litigation in the 1980, here: Church of Scientology of California v. Commissioner of Internal Revenue, US Tax Court, September 24, 1984 . It may also have been among the documents seized by the FBI in their raids in the 1977. And it was also quoted in at least one previous trial of Scientology here in France.

Many thanks! I was able to find the policies in question through your link. I'll be passing them on to the tax office. Hopefully, they will help them in deciding to appeal the recent decision by the appeals court to grant tax exemption to the church.

It should be known that former members from different periods have had occasion to own complete bound collections of these policies and bulletins (the greens and the reds), which contain all the policy and bulletin versions current at the time of their publication, with updated addenda. It is highly likely that sets of these could be located and shared for future reference.

You're right of course: as well as the material floating around online (and there is a lot of it, even if the links sometimes change) these documents are still being held by former members -- and some are now in the collections of academics such as Stephen Kent. When looking for the original version of a Hubbard text quoted in court in French, I have always been able to find a way to track it down.

About the Author

Jonny Jacobsen is the author of the Infinite Complacency website tracking violence and abuse in Scientology and also contributes to Tony Ortega's Underground Bunker on the same subject.. He trained as a journalist in the late 1980s with the Birmingham Post and Mail group and spent several years freelancing in Scotland before moving to Paris in 1994, where he is still based. His first investigative piece on Scientology was in 1996 as a reporter/producer with Radio France International. You can reach him at jonnymcj(AT)hotmail.com.

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A Piece of Blue Sky

Click on the image to order the new edition of Jon Atack's definitive history of Hubbard-era Scientology. To learn more about the battle to get the original version published read "Atack Unchained" below.

For the Record

I approached Scientology several times to get their response to the allegations set out in the first section, "Violence and abuse in the Sea Org" regarding David Miscavige's violence and the abuse at the International Base: nothing so far.

Unless otherwise specified, all quotes come from interviews with the author.

Don't get me started: If you want to know why I write about Scientology, read this account published in Scotland's Sunday Herald on November 8, 2009. Since they never properly formatted it on their website I've also posted it here, in a slightly more readable form.

The Paris Trial: In answer to a question from a reader: these are my first-hand reports from the court, not a round-up of the French press coverage.